Workmen's Compensation Board of Kentucky v. Abbott

• Decision Date: 18 December 1925
• Citation: 212 Ky. 123,278 S.W. 533
• Parties: WORKMEN'S COMPENSATION BOARD OF KENTUCKY v. ABBOTT ET AL.
• Court: Kentucky Court of Appeals

278 S.W. 533

212 Ky. 123

WORKMEN'S COMPENSATION BOARD OF KENTUCKY v. ABBOTT ET AL.

Court of Appeals of Kentucky.

December 18, 1925

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Proceeding under the Workmen's Compensation Act by Thomas J McGuire, claimant, opposed by L. V. Abbott, employer. From an award by the Compensation Board, the employer appealed to the circuit court, and from its judgment based on a compromise between the employer and the employee, without consent of the Workmen's Compensation Board of Kentucky, the Board files a transcript of the record with a motion for an appeal. Motion to grant appeal sustained, and judgment reversed, with directions.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty Gen., for appellant.

Selligman & Selligman and Norton L. Goldsmith, all of Louisville, for appellees.

THOMAS J.

The appellee L. V. Abbott was engaged in the business of an architect, engineer, and builder in the city of Louisville and was subject to the provisions of our statute known as the "Workmen's Compensation Act (Ky. St.§§ 4880-4987), hereafter referred to as "the act." He had in his employ the appellee Thomas J. McGuire, who was 28 years old and otherwise sui juris. Both Abbott and McGuire had accepted the provisions of the act, and the latter sustained an injury covered by it. He made application to the Compensation Board, and it rendered an award in his favor for certain allowable items, and in addition found that he had sustained 10 per cent. permanent partial disability, for which he was compensated at the rate of $1.20 per week for 335 weeks. After crediting the award with payments that had been theretofore made by the employer, the total amount of it was less than $500 and more than $200. The employer who disputed the correctness of the award in making any allowance for any per cent. of permanent disability appealed the case to the Jefferson circuit court in the manner provided by the act, and to which appeal the Board, as the act requires, was made a party. While the appeal was pending, Abbott and McGuire reached an agreement, without consulting or in any manner obtaining the consent of the Board, whereby in consideration of the payment by the employer to the employee of $457 the award and all claims arising under the act were compromised and settled. That agreement was reduced to writing and signed by both Abbott and McGuire, and was filed in the circuit court in which the appeal was pending, accompanied by a motion that the court render judgment in accordance with the agreement, to which the Board objected by a special demurrer to the jurisdiction of the court to render any such judgment; but the court ruled against it, to which it excepted. The motion made by appellees was sustained and judgment rendered in accordance with the agreement, to reverse which the Board has filed a transcript of the record in this court with a motion for an appeal.

Before taking up the questions argued on the merits of the case, we will first briefly consider a question of practice raised by an amicus curiæ brief filed in the case by permission of this court. It is that the Board has no right or authority to prosecute an appeal in this class of cases from the circuit court to this one. Involved in that question is the further one as to the extent of the Board's interest in the matters involved, i. e., whether under the act it is only a mere nominal party to the proceedings on appeal either to the circuit or to this court; or whether it has, as the representative of the public, a substantial interest beyond that of a mere nominal party and which question will be hereinafter answered to the effect that it is more than a mere nominal party. Notwithstanding that fact, however, it, perhaps, would have been competent for the Legislature to deny it the right of appeal to this court and to have conferred it alone on the employer and the employee; but the fact that the Board is more than a nominal party and represents some substantial interests of the public in the due and proper administration of the act (as hereinafter shown) is persuasive that the Legislature did not intend to withhold from it the right of appeal so that it might protect that interest in this court to which an appeal may be taken; and, therefore, such right should not be denied, unless the act does so in clear and explicit terms. The provisions for an appeal to the circuit court are contained in section 52 of the act, now section 4935 of our Statutes, and, of course, the Board could scarcely be an appellant to the circuit court, since the appeal is from its award, which, however, is untrue with reference to the judgment of the circuit court on review of the award. Therefore we do not attribute any particular significance to the word "party" in that section with reference to who may appeal from the award of the Board to the circuit court. Section 53 of the act, now section 4936 of our Statutes, makes provisions for an appeal to this court from the judgment of the circuit court, and it is therein provided that the scope of this court's review "shall include all matters herein made the subject of review by the circuit court and also errors of law arising in the circuit court," etc. It is then further provided that--

"The procedure as to appeal to the Court of Appeals shall be the same as in civil actions, so far as the same may be applicable to and not in conflict with the provisions of this act, except as follows."

There is then prescribed what evidence shall be brought to this court and the method by which it may be done, as well as the duty of "the appellant" in the premises, after which certain provisions are made as to the duties of the circuit clerk upon direction of "the parties" with reference to the transmission of the record to this court, as well as what it should contain. The section, supra, providing for an appeal to the circuit court, says, inter alia, "The Board and each party shall have the right to appear in such review proceedings," and the right to appear carries with it the further one to be heard, which latter right is not usually accorded to a mere nominal party. We therefore hold that it was the purpose of the act to give the Board, which must be summoned on appeal to the circuit court, the right to be heard in that court, and the section providing for an appeal to this court, as we have seen, vests it with the right to review the same matters that were reviewed by the circuit court, and it would seem naturally to follow that if the Board had the right to be heard in the review by the circuit court, it would likewise have the same right in this court. We therefore hold that it is competent for the Board to appeal to this court from any judgment rendered by the circuit court in all cases where the amount involved is appealable to this court.

Coming now to the merits of the case: It first is insisted by appellant that the circuit court was without jurisdiction to enter a judgment for a fixed sum, as is done therein in all actions seeking a money judgment against the defendant, whether it was based upon an agreement or not, and which contention is bottomed upon a construction placed upon section 52, supra, of the act, prescribing the duties of the circuit court on such petitions for review. It is argued, and which seems to be true, that nothing therein contained, either expressly or impliedly, confers such jurisdiction on the circuit court in such appeals from the award of the Board; and, that being true, it is then argued that, since the act itself creates a special remedy for newly created rights as well as prior ones belonging to the same class, it is competent for the Legislature in prescribing the right of appeal to limit the authority or jurisdiction of the appellate court. There seems to be sound reasons for that argument, since it appears from the provisions of the act that the hearing in the circuit court is not a de novo proceeding, but only a reviewing one, and its judgment is expressly confined to a determination of four specifically named questions, neither of which involves the right to enter a judgment for a fixed lump sum.

If, however, it was the intention of the act, manifested either by its express terms or by necessary implication, that the employer and employee should not be allowed to enter into an agreed settlement of claims arising under the act, except upon certain imposed conditions, or to commute an award made by the Board after due submission to it except upon the same or other imposed conditions, then any such agreement or commuting would violate the provisions of the act and thereby be unenforceable; provided it was competent for the Legislature to so prescribe, and in determining those questions we will first take up and consider the last-mentioned one.

It is vigorously contended that if the Compensation Act either by its express terms or necessary implication, prohibits the settlements, hereinbefore referred to, such prohibitions violate sections 1 and 2 of our Bill of Rights by denying the freedom of the parties sui juris to contract, and thereby also violates the "due process clause" of both the state and federal Constitutions (Const. Ky. § 14; Const. U.S Amend. 14) in that the property right of contract belonging to every sui juris citizen is illegally withheld. In considering that objection it should be steadfastly remembered that the right to contract is necessarily limited and confined to legal contracts, and the provisions of both the federal and state Constitutions relied on may not be invoked to guarantee the supposed right of one to make or enter into illegal and properly forbidden contarcts, and which modification is conceded by...